What are Potential Obstacles to Conducting Background Checks?
Navigating Criminal Background Checks: Legal and Practical Guidance for Municipal Hiring
Public entities need to determine who will conduct the criminal background screen (internal or external), where to find the information, the quality of the information and how to handle the restrictions on use of the gathered information. Here are some obstacles public entities may face during the process: Criminal background checks - Courts have ruled that information about prior criminal convictions are a matter of public record and can be used as a tool in the hiring process. Unfortunately, there is no nationwide repository for criminal records and the reporting of convictions varies across jurisdictions. In order to ensure the accuracy of
gathered information, research may need to be done at the local, county or regional level. Laws vary from state to state on whether and how a criminal conviction may be used in the hiring process. For example, arrest records without a conviction generally can’t be used. State laws vary on the use of misdemeanor convictions. Most states don’t allow juvenile convictions to be released. Therefore, working with legal counsel to better understand state requirements in using criminal information is essential. Child abuse checks (sexual and violent offender check) - Public entities that have staff members who interact with children such as those involved in recreation programs, organized sports programs and child care represent a significant potential exposure to liability. Many entities have become more aware of the importance of screening prospective workers and volunteers before they are allowed to work with children in part because of the potential high-profile liability exposure of child abuse. A public entity’s background investigation policy should include child abuse checks when the new employee will interact with youth. Using internal or external resources to conduct investigations - Many arguments can be made to support either an Internal background investigation or using an external source to do the investigation. There are a number of independent vendors who specialize in background investigations—everything from motor vehicle record checks to
criminal histories and child abuse checks. Not all vendors operate the same way. For this reason, it is important to screen vendors prior to signing contracts for their services. MMIA can offer guidance on questions to ask and possible vendors to consider. While many municipalities have easy access to criminal justice information via their own police department, it is not
always wise to use the internal department for criminal background checks beyond those for police officer positions. The Criminal Justice Information Network (CJIN) cannot be used for background checks outside those positions that have access to or use CJIN. This limits the information an internal department can gather on an applicant, especially those who have lived outside the state of Montana. Legal issues ‐ Implementing a process to conduct criminal background investigations may sound simple enough but there are legal issues to consider including adherence to the Fair Credit Reporting Act (FCRA). Public entities need Montana Municipal Officials Handbook 80 consent from the candidate for a background check. The signed authorization on the application is not normally enough to be considered a consent form. In addition, the entity is required to inform the candidate, using a legal Adverse Action notice, if he or she is not hired based on information contained in the background investigation. The candidate has the right to contest the information. Federal Civil Rights Laws ‐ In general, these laws prohibit denial of employment solely on the basis of a prior criminal
record that is unrelated to job performance. Care must be taken to weigh the offense against the requirements of the position. The hiring process should include considerations of the nature and gravity of the offense, the relationship between the incident and the type of job; the amount of time that has passed since the conviction or completion of the sentence; the applicant’s efforts and success at rehabilitation and factors indicating the incident
may be repeated. Negligent hiring liability ‐ Although the costs involved in hiring the wrong employee should be an impetus for public entities to conduct pre‐employment background investigations, there are several other compelling reasons. Negligent hiring arises under tort law when the employer knows of a dangerous condition or propensity toward activity such as a previous criminal history or a poor driving record but hires the applicant anyway or fails to perform a reasonable background investigation. The background check process should be developed in conjunction with legal counsel and the process should be consistent across all positions. Investigation inquiries must be job‐related and include implications and restrictions for using gathered information.
gathered information, research may need to be done at the local, county or regional level. Laws vary from state to state on whether and how a criminal conviction may be used in the hiring process. For example, arrest records without a conviction generally can’t be used. State laws vary on the use of misdemeanor convictions. Most states don’t allow juvenile convictions to be released. Therefore, working with legal counsel to better understand state requirements in using criminal information is essential. Child abuse checks (sexual and violent offender check) - Public entities that have staff members who interact with children such as those involved in recreation programs, organized sports programs and child care represent a significant potential exposure to liability. Many entities have become more aware of the importance of screening prospective workers and volunteers before they are allowed to work with children in part because of the potential high-profile liability exposure of child abuse. A public entity’s background investigation policy should include child abuse checks when the new employee will interact with youth. Using internal or external resources to conduct investigations - Many arguments can be made to support either an Internal background investigation or using an external source to do the investigation. There are a number of independent vendors who specialize in background investigations—everything from motor vehicle record checks to
criminal histories and child abuse checks. Not all vendors operate the same way. For this reason, it is important to screen vendors prior to signing contracts for their services. MMIA can offer guidance on questions to ask and possible vendors to consider. While many municipalities have easy access to criminal justice information via their own police department, it is not
always wise to use the internal department for criminal background checks beyond those for police officer positions. The Criminal Justice Information Network (CJIN) cannot be used for background checks outside those positions that have access to or use CJIN. This limits the information an internal department can gather on an applicant, especially those who have lived outside the state of Montana. Legal issues ‐ Implementing a process to conduct criminal background investigations may sound simple enough but there are legal issues to consider including adherence to the Fair Credit Reporting Act (FCRA). Public entities need Montana Municipal Officials Handbook 80 consent from the candidate for a background check. The signed authorization on the application is not normally enough to be considered a consent form. In addition, the entity is required to inform the candidate, using a legal Adverse Action notice, if he or she is not hired based on information contained in the background investigation. The candidate has the right to contest the information. Federal Civil Rights Laws ‐ In general, these laws prohibit denial of employment solely on the basis of a prior criminal
record that is unrelated to job performance. Care must be taken to weigh the offense against the requirements of the position. The hiring process should include considerations of the nature and gravity of the offense, the relationship between the incident and the type of job; the amount of time that has passed since the conviction or completion of the sentence; the applicant’s efforts and success at rehabilitation and factors indicating the incident
may be repeated. Negligent hiring liability ‐ Although the costs involved in hiring the wrong employee should be an impetus for public entities to conduct pre‐employment background investigations, there are several other compelling reasons. Negligent hiring arises under tort law when the employer knows of a dangerous condition or propensity toward activity such as a previous criminal history or a poor driving record but hires the applicant anyway or fails to perform a reasonable background investigation. The background check process should be developed in conjunction with legal counsel and the process should be consistent across all positions. Investigation inquiries must be job‐related and include implications and restrictions for using gathered information.